Interview with Sir Mark Potter

Hugh Logue, Legal News Editor

The start of the new Easter legal term this year marked the beginning of Sir Nicholas Wall's Presidency of the Family Division as Sir Mark Potter retired after five years in the role. Eyebrows were raised amongst lawyers when Sir Mark was initially appointed due to his mainly commercial law background at Fountain Court chambers, however his leadership over the family courts has been widely praised amongst judges as a success.    

During Sir Mark's term as President, the family courts faced some difficult challenges and underwent dramatic changes. Shortly before he retired earlier this month, I interviewed Sir Mark about his term in office, the ongoing issues facing the family justice system and his legacy. 

Last month Sir Mark extended by six months measures, known as the Interim Guidance, intended to assist Cafcass in addressing the backlog in preparing reports to do with care applications and in the allocation of Children's Guardians. I asked him if he thought the Interim Guidance was sufficient.

"The Guidance has reduced delays on various areas, but it is slow progress. The size of the backlogs and the resources available to Cafcass in England have meant that, since its effective implementation in November/December 2009, the Guidance has made insufficient inroads to enable the time-frames provided for in respect of new cases to be achieved. This is not least because of the remorseless rise in children's applications, both in public law and private law. I have therefore renewed the Interim Guidance for a further six months," Sir Mark said.

What is the long term solution to the problems facing Cafcass and child social care? "In my view, it is unrealistic to expect a long term solution to be reached without the provision of considerable extra resources. This is no easy task, as there is a crisis in the recruitment and retention of mature social workers, quite apart from current financial constraints. The lead initiative and responsibility for the solution must necessarily be undertaken by government as an exercise in which the judiciary will cooperate within the statutory constraints of the Children Act 1989. Such long term solution will no doubt be the concern of the recently appointed Family Justice Review; but that should not be regarded as a reason for postponing necessary measures in the shorter term."

Despite Sir Mark's predecessor Baroness Butler-Sloss putting forward strong arguments in the House of Lords earlier this month, she was unable to prevent the Children, Schools and Families Bill passing into legislation prior to Parliament dissolving. The new Act, in addition to earlier reforms approved by Sir Mark, allows the media unprecedented access to report on family proceedings. Before the Act received Royal Assent, I asked him if he thought the additional provisions were acceptable.     

"Following evidence given before the House of Commons Public Committee, as well as views expressed by me on behalf of the judiciary to the Ministry of Justice in relation to certain technicalities and a number of suggested improvements, I consider that the Bill as presently amended is broadly satisfactory to protect the welfare of children the subject of proceedings.

"I acknowledge, with regret, the fact that it will never be possible to prevent a degree of identification of families and children within the local community of the school, children and their immediate neighbours, in cases where reporting occurs.

"Fortunately for judges, the degree of time they may have to spend in individual cases in dealing with questions of reporting are likely to be relatively few in the light of the sparse attendance of reporters in the general run of cases. No doubt, there will still be additional points to be made by way of proposed amendments to the Bill as it progresses onto the statute book; however, I would expect little radical change in its somewhat complicated format," Sir Mark said.      

The Act became legislation despite an on-going pilot to test the feasibility of publishing anonymised judgments instead of allowing full media access. Should the government not have waited for the conclusion of the pilot?

"The publication of judgments pilot was of course the product of the earlier stance of the government that the media should be excluded, but that the processes and reasoning underlying the decisions of the judiciary should be made clear and available to the public by the publication of anonymised judgments at the end of cases of any significance. Thus, the principle that the media and public should be able to understand the workings of the system would be sufficiently vindicated and the pejorative stigma of "secret justice" avoided.

"In my view the widespread publication of judgments remains a desirable aim in addition to the access of the media provided for in the Bill. However, the preparation and approval of such judgments are bound to consume extra judicial time and add to the burdens of an already overworked judiciary whose scarcity of time is unlikely to be reduced in the future. Speaking for myself, therefore (and my successor may well disagree with me!), I am in favour of the pilot scheme in principle whilst being wary of its results in practice."

The Government announced plans last October to amend section 41 of the Children Act 1989. At present section 41 places a responsibility on the court to appoint a named guardian to represent children and their interests in care and related proceedings. The amendment would mean that the court appoints Cafcass the organisation, rather than a named practitioner, to carry out the role and functions of the Children's Guardian. In Sir Mark's view, what will be the repercussions if these amendments go through?

"It has been made clear to me that the Government does not intend to implement any statutory change to section 41. I have been advised that the junior Minister with responsibility for Cafcass (Baroness Delyth Morgan) agrees with me that for a child to be properly represented before the court, the Guardian must establish a relationship with the child and the other significant adults to be able to comment upon and influence the progress of the case in the best interests of the child. She supports the principle of the Guardian being continuously in place," Sir Mark said.

"While s.41 is not being amended, I am told that the government remains concerned about how best to address issues of working practices and accountability within Cafcass. It has been suggested that rule changes to deal with these matters are likely to be proposed. I do not consider this can wait till the Family Justice Review reports; nonetheless I express the hope that any such proposals will be introduced with sufficient time for any necessary consultation with interested parties."

The Family Justice Council was set up in 2002 and has successfully established itself as an authoritative source of inter-disciplinary advice to the Government on the family justice system. How does Sir Mark see the Family Justice Council and its local branches developing? 

"I believe that the National Family Justice Council may wish to develop more of its own initiatives for creative reforms and improvements to the Family Justice System, as well as advising and commenting on government proposals as they are made. Since the members are all unpaid nominees or volunteers from busy walks of life, this has not proved easy.  The Local Family Justice Councils have established themselves as key providers of inter-disciplinary training across England and Wales.  I know from first hand experience that the quality of the training events organised by the Local FJCs is remarkably high.  Some Councils, reflecting the energy and enthusiasm of their members, deliver far more than the minimum requirement, organising several events a year.  One of the challenges for the future will be to encourage more of the Local FJCs to aspire to the standards set by the best of them."

What does Sir Mark hope his legacy as President will be?  "I hope and believe that I have achieved increased recognition for the vital role of family judges and a heightened profile for the needs and priorities of children cases within the overall resources of the justice system."

Finally, what will he do next? "Once I have had a holiday, I hope to remain active as an arbitrator and as a Trustee of Great Ormond Street Hospital and Somerset House."